U.S. Court of Appeals Affirms OSHA Citation for Violations of General Duty Clause for Death of Employee Exposed to Hazards

F&H Coatings LLC is a commercial and industrial painting contractor that contracted with Boardman LLC, a manufacturer of steel pressure vessels and tanks. F&H was contracted to sandblast and paint a number of vessels at Boardman’s manufacturing facility. During the contract work, a fatal incident at the Boardman facility killed Tony Losey, an employee of F&H.

At the time of this of this fatal accident, Losey and his F&H supervisor were preparing a 12,000 -pound vessel for sandblasting when the vessel slipped from its supporting racks and crushed Losey.

F & H characterized this event as a “freakish, unforeseeable, and still-unexplained accident.”

The Occupational Safety and Health Administration (OSHA) learned of the Losey death the same day and sent a compliance safety and health officer to inspect the scene.

The OSHA officer interviewed witnesses and employees of F&H and Boardman. Upon the officer’s recommendation, OSHA issued a citation to F&H for violation of the General Duty Clause, 29 U.S.C. 654(a)(1), because F&H’s employee was “exposed to struck-by hazards in that the pressure vessel was not placed on the work rack which prevented unintentional movement.”

F&H contested the OSHA citation. Approximately eight months after the hearing, the administrative law judge issued a written order that found that the incident that killed Losey resulted from an obviously hazardous condition of which F&H was aware.

F&H appealed OSHA’s final order requesting that the Tenth Circuit Court of Appeals set aside the penalty imposed against it. The U.S. Court of Appeals for the Tenth Circuit found that the administrative law judge’s findings were supported by the substantial evidence and thus affirmed OSHA’s final order and the penalty issued.

F & H Coatings v. Acosta, No. 17-9506, U.S. Court of Appeals for the Tenth Circuit, Aug. 20, 2018.

Kreisman Law Offices has been handling catastrophic injury lawsuits, workplace injury lawsuits, construction injury cases and wrongful death cases for individuals, families and loved ones who have been injured, harmed or killed by the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Naperville, New Lenox, Orland Park, Countryside, Country Club Hills, Maywood, Rolling Meadows, Hoffman Estates, Evergreen Park, Chicago (DePaul University Area, East Garfield Park, Gage Park, Garfield Park, Gold Coast, Humboldt Park, Beverly, Bridgeport, Archer Heights, Andersonville, Bronzeville, Buena Park, Calumet Heights), Clarendon Hills, Oakbrook Terrace, Brookfield and Elmhurst, Ill.